Crane v. Murray

• Citation: 80 S.W. 280,106 Mo. App. 697
• Court: Court of Appeal of Missouri (US)
• Decision Date: 04 April 1904
• Parties: CRANE v. MURRAY et al.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 280

106 Mo. App. 697

CRANE v. MURRAY et al.^*

Kansas City Court of Appeals. Missouri.

April 4, 1904.

COUNTERCLAIMS — GROUNDS — CONTRACTS — WAIVER OF TORTS — ASSUMPSIT — LANDLORD'S LIEN.

1. Under Rev. St. 1899, § 605, providing that a counterclaim may be set up where the cause of action arises out of the contract or transaction set forth in the petition as the foundation of plaintiff's claim, or connected with the subject of the action, or that in an action on contract any other cause of action arising on contract and existing at the commencement of the action may be set up, a counterclaim, under the first clause of the statute, must arise out of the subject-matter of plaintiff's action, or must be connected therewith, or related thereto, but under the second clause a contract may be set up as a counterclaim to an action on contract, whether it be founded on the contract declared on by plaintiff or any other, however disconnected or independent.

2. A claim for the conversion by plaintiff of corn on which defendant had a valid landlord's lien gives rise to an implied assumpsit in defendant's favor, irrespective of whether plaintiff sold the corn and received the proceeds or not, and is a valid counterclaim, under Rev. St. 1899, § 605, providing that in an action on contract any other cause of action arising on contract may be set up as a counterclaim in a suit by plaintiff on a bond to which defendant is a party.

3. One who buys a tenant's crop knowing it to have been grown on demised premises, and thereby incurs a liability to the landlord under Rev. St. 1899, § 4123, is not, however, guilty of conversion, so as to raise an implied assumpsit in the landlord's favor, unless he bought the crops with knowledge of the landlord's ownership of or lien on the crops.

4. Under Rev. St. 1899, § 605, providing that any cause of action arising on contract may be set up as a counterclaim to an action on contract, where defendant pleads, as a counterclaim, a conversion, he should show therein that he has elected to waive the tort and sue in assumpsit; as, for example, by alleging a promise to pay on plaintiff's part.

Appeal from Circuit Court, Daviess County; J. W. Peery, Special Judge.

Action by Isaac H. Crane against Sarah C. Murray and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. G. Callison and Selby & Givens, for appellants. J. T. De Vorss, for respondent.

ELLISON, J.

Plaintiff obtained, before a justice of the peace, in an action of forcible entry and detainer, a judgment against defendant Murray for restitution of the premises and for damages and costs. Afterwards defendant Murray appealed from that judgment to the circuit court of Daviess county, and gave an appeal bond, signed by himself and the other defendants as her sureties. Afterwards judgment was rendered by the circuit court in favor of plaintiff for the restitution of the premises and $100 damages and the monthly value of rents and profits amounting to $61.50. This judgment was afterwards affirmed on appeal to this court. Defendant Murray having failed to pay the judgment, plaintiff brought this action on the bond aforesaid. Defendant Murray then filed her separate answer, in which she admitted the execution of the bond, and then pleaded a counterclaim in two counts and a set-off in the third, but all three relating to the same thing. The first count alleges that she rented a certain farm to a tenant for one year for cash rent of $235. That the tenant grew 1,000 bushels of corn thereon, worth $250, but that he did not pay the rent, and that plaintiff, knowing the corn had been grown on her demised premises, bought it of the tenant, whereby he became liable to defendant by the terms of section 4123, Rev. St. 1899, of the landlord and tenant act, for the value of the corn, not exceeding the rent then due. The second count was the same, except that nothing is said as to the landlord's lien; but it alleged that defendant Murray took a chattel mortgage on the corn to be grown, and duly recorded it, and that plaintiff bought of the tenant disregarding the mortgage, whereby he became liable to defendant, etc. That count is not now insisted on. The third count says nothing of renting the land, or of a lien for rent, or of a mortgage on corn, but alleges by way of set-off that defendant was the owner of 1,000 bushels of corn of the value of $250, which plaintiff pretended to buy of a third party without defendant's knowledge or consent, and converted it to his own use. The cause was submitted to Judge Broaddus while judge of the circuit court. He became a member of this court before judgment was rendered, and was succeeded by Judge Alexander, and, he having been plaintiff's counsel, the cause was by agreement submitted to J. W. Peery, Esq., of Gentry county. The latter, after hearing the evidence, made a finding that defendant's answer did not state a counterclaim to the plaintiff's action.

The statute (section 605, Rev. St. 1899) declares that the defendant may set up a counterclaim against a plaintiff's cause of action when it arises "out of one of the following causes of action: First, a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action; second, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." It is manifest that the counterclaim did not arise out of the contract (that is, the bond) set forth in plaintiff's petition, as is contemplated by the first clause of the statute just quoted. Neither is it connected with such bond. The statute means that a counterclaim must arise out of the contract or transaction set forth in the petition, or it must be connected with the subject of the action upon which the petition is based. And, if the plaintiff's action is on a contract, the defendant's counterclaim, if it be also based on a contract, need not arise out of the contract declared on by plaintiff, and it need not be connected with or related to it. It may be based on a wholly independent and disconnected matter, provided, as just stated, that it arises on a contract. Under the first clause of the statute...